United States District Court, S.D. New York
May 3, 2005.
MOHAMMAD IDREES, Plaintiff,
CITY OF NEW YORK DEPARTMENT OF PARKS AND RECREATION, Respondent.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Mohammad Idrees brings this complaint pro se against the
City of New York Department of Parks and Recreation ("Parks
Department" or "Department") alleging that he was discriminated
against on the basis of his race, color, national origin, gender,
religion, and age in violation of Title VII of the Civil Rights
Act ("Title VII") and the Age Discrimination in Employment Act
("ADEA"). Idrees also alleges that the Parks Department
retaliated against him for filing a discrimination claim with the
Equal Employment Opportunity Commission ("EEOC") and that the
Parks Department failed to protect him from a physical assault by
The Parks Department has moved for partial judgment on the
pleadings on the grounds that the majority of Idrees's Title VII
and ADEA claims are time-barred and his state tort claim is both
untimely and fails to comply with New York State's notice of
claim requirements. For the reasons stated below, the
Department's motion should be granted. I. BACKGROUND
For purposes of this motion, the Court assumes the facts
alleged by Idrees to be true. Idrees was born in Pakistan in 1946
and is now a U.S. citizen. Complaint, filed Mar. 19, 2004 (Docket
#1) ("Compl."), at 1;*fn1 Complaint Form, dated Mar. 19,
2004 (annexed to Compl.), at 3. He earned Bachelors and Masters
degrees in Chemistry from the Government College of Lahore,
Pakistan and a Masters in Public Administration from Columbia
University. Compl. at 1.
Idrees joined the Parks Department on August 19, 1985 as the
Manager of the Engineering Audit Office. Id. at 1-2. He was
initially offered a yearly salary of $28,000 in writing but,
after he resigned from his previous job, he was informed that he
would receive $27,383 per year. Id. at 2.
From April 28, 1990 to May 19, 1992, Idrees was the Acting
Director for the Engineering Audit Office. Id. at 1-2. For his
work as Acting Director, Idrees was given an outstanding
evaluation by his supervisor and awarded a merit increase. Id.
at 1. However, another person was ultimately appointed Director
and Idrees was made Deputy Director. Id. After this time,
Idrees was unable to obtain any of the promotions he applied for
in the Parks Department. See id. at 1-2, 5-6.
During the course of his employment with the Parks Department,
Idrees was denied over 23 opportunities for a promotion. Id. at
1-2.*fn2 He was denied a promotion for the first time when he applied for the position of Director of Fiscal Management on
September 20, 1995. Id. It appears that Idrees did not apply
again for a promotion until May 28, 1999, when he was denied a
promotion to be Chief of Recreation in Brooklyn. Id. at 2. He
was subsequently denied promotions to 14 other positions prior to
filing his complaint with the EEOC. Id. at 1-2; Pl. Reply at
7-8. While Idrees actually applied for most of these positions,
at least six positions were filled without being advertised.
See Pl. Reply at 7-8. The various jobs were awarded to white
men, white women, an Indian male, and an African American male.
Compl. at 1-2. Many of the positions were filled by people with
less education or experience than Idrees. See id.; Pl. Reply
On October 28, 1993, Idrees was physically assaulted by a
subordinate, Gabriel Preda, who hit him while yelling, "I will
kill you fucking [M]uslim." Compl. at 3. Idrees filed charges
against Preda with the Bias Bureau of the Queens Criminal Court,
although his supervisor at the time, Dennis Platt, urged him not
to pursue the case. See id.; Pl. Reply at 2. Preda was fired,
and brought an arbitration proceeding to regain his job. Compl.
at 3. Although Platt tried to influence witnesses and told the
arbitrator that Preda was welcome back to his old position at the
Parks Department, Preda ultimately lost in arbitration. See
Idrees also alleges that he was subjected to harassment by
supervisors Platt, Mary Pazan, and Mel Fox. See id. at 3-5.
Prior to the assault, Idrees described Platt's behavior and
comments as "demeaning" and, following the arbitration with
Preda, Platt became "more insulting." See id. at 3. When
Idrees asked Platt why he supported Preda in the arbitration
hearing, Platt responded, "you Pakistanis are not equal to us." Id. At one point, Idrees
became ill from the harassment and took a week of leave from
work. Id. When he returned, the harassment increased
"tremendously." Id. After Idrees passed two tests for higher
level positions in April 1995, Platt told Idrees that he should
leave the Parks Department, asking him, "why [do] you think
important positions should be given to Pakistani [M]uslims[?]"
Id. On May 1, 1995, Platt had Idrees transferred to the
Management Services Division, where he was demoted to a
"clerk/laborer." Id. at 1, 3.
In his new position in the Management Services Division, Idrees
worked for Mary Pazan. Id. at 3. Idrees claims he was
"constantly . . . harassed, insulted, and humiliated" by Pazan.
Id. at 4. Idrees sent written requests to Pazan and the
Director of Personnel on September 17 and September 28, 1999
asking to be transferred to Manhattan, but did not receive a
On October 1, 1999, Idrees was transferred to Contract
Administration. Id. at 5. He informed the director that he
wished to be transferred to Manhattan but was told, "Why don't
you leave. I will fire you. I will transfer you to Staten
Island." Id. In this new department, Idrees was required to
report to Assistant Director Mel Fox, who made derogatory
comments about Muslims to Idrees, including, "Ismael was a
bastard! You [M]uslim people are very nasty." Id. On January 5,
2001, "out of [the] clear blue sky," Fox attempted to hit Idrees
on the head with a stapler. Id. Idrees reported this incident
to the Inspector General's Office, but Fox was never removed as
Idrees's supervisor and remained at the Parks Department until he
In October 2001, Idrees passed the Associate Staff Analyst
("ASA") civil service exam. Id. He submitted the results of the
exam to his director in order to be considered for a promotional
title and a salary increase. Id. He received a letter dated
January 25, 2002 from the Parks Department notifying him that the New York City Department
of Citywide Services had certified his eligibility for an
appointment to an ASA position at a salary increase and Idrees
was interviewed for a possible promotion. Id. On April 24,
2002, Idrees received a letter from the Personnel Director of the
Parks Department notifying him that another candidate had been
selected for a promotion to an ASA title. Id.; Letter from
David Terhune to Mohammad Idrees, dated Apr. 16, 2002 (reproduced
as Ex. 14 to Compl.). Of the 15 people who also took the ASA
exam, 13 were promoted to ASA positions by April 7, 2002. Compl.
at 6. These individuals included people with less education than
Idrees. Id. Idrees filed a complaint with the Department's
Equal Employment Office on May 16, 2002. Id. As a result of
this complaint, Idrees was eventually awarded an ASA title on
November 25, 2002, a promotion that took effect on December 22,
Idrees filed a complaint with the EEOC on February 7, 2003
alleging discrimination based on race, color, religion, national
origin, and age and also alleging retaliation. Id.; Charge of
Discrimination, dated Feb. 7, 2003 (reproduced as Ex. 20 to
Compl.). On December 31, 2003, the EEOC informed him that most of
his allegations were time-barred. See Letter from Marjorie
Scilken-Freidman to Mohammad Idrees, dated Dec. 31, 2003
(reproduced as Ex. 24 to Compl.) ("Dismissal Letter"). The EEOC
found that the allegation related to the initial failure to
receive a promotion to ASA was timely, but determined that the
problem was remedied because Idrees was awarded back-pay to
compensate him for the delay in receiving the title. See id.
Accordingly, the EEOC issued Idrees a Right to Sue Notice. See
Dismissal and Notice of Rights, dated Dec. 31, 2003 (reproduced
as Ex. 25 to Compl.) ("Dismissal"). Idrees alleges that he was denied ten other promotional
opportunities after he filed his EEOC complaint. See Compl. at
6. He received denial letters for seven positions on June 17,
2003, and a denial letter for one position on August 8, 2003.
Idrees filed the present complaint on March 19, 2004. See
Compl. The Parks Department submitted an Answer, see Answer,
filed July 2, 2004 (Docket #8), and subsequently filed the
instant motion for partial judgment on the pleadings. See
Motion for Partial Judgment on the Pleadings, filed Sept. 3, 2004
(Docket #10); Memorandum of Law in Support of Defendant's Motion
for a Partial Judgment on the Pleadings, filed Sept. 3, 2004
(Docket #10, Att. 1) ("Def. Mem."). Idrees responded to the
Department's motion on November 3, 2004, see Pl. Reply, and the
Parks Department filed a reply brief, see Reply Memorandum of
Law in Further Support of Defendant's Motion for a Partial
Judgment on the Pleadings, filed Nov. 17, 2004 (Docket #12).
II. APPLICABLE LEGAL PRINCIPLES
A. Motion for Judgment on the Pleadings
The standard for resolving a motion for judgment on the
pleadings under Fed.R.Civ.P. 12(c) is the same standard used
for a motion to dismiss for failure to state a claim under Fed R.
Civ. P. 12(b)(6). See, e.g., Burnette v. Carothers,
192 F.3d 52, 56 (2d Cir. 1999), cert. denied, 531 U.S. 1052
(2000). Accordingly, the Court must accept the factual
allegations set forth in the complaint as true and draw all
reasonable inferences in favor of the plaintiff. See, e.g.,
id.; Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d
Cir. 2004) (citing Hernandez v. Coughlin, 18 F.3d 133, 136 (2d
Cir. 1994)). A complaint need only include a short and plain
statement of the claim that gives "the defendant fair notice of
what the plaintiff's claim is and the grounds upon which it rests," Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512 (2002) (internal quotation marks and citation
omitted), and should not be dismissed "unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief," Conley v. Gibson,
355 U.S. 41, 45-46 (1957). In making this determination,
complaints drafted by pro se plaintiffs are held "`to less
stringent standards than formal pleadings drafted by lawyers,'"
Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)), and
they should be interpreted "`to raise the strongest arguments
that they suggest,'" Graham v. Henderson, 89 F.3d 75, 79 (2d
Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d
For purposes of this motion, a party's pleading "is deemed to
include any written instrument attached to it as an exhibit or
any statements or documents incorporated in it by reference."
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d
Cir. 1991), cert. denied, 503 U.S. 960 (1992); accord
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
B. Timeliness of Employment Discrimination Claims
A complainant bringing suit under Title VII or the ADEA must
first file a charge with the EEOC and receive a right-to-sue
letter. See 42 U.S.C. § 2000e-5(e); Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per
curiam) (citing cases). A charge must ordinarily be brought
within 180 days after the alleged unlawful employment practice
occurred. See 42 U.S.C. § 2000e-5(e). In states such as New
York, however, where a state or local agency has jurisdiction to
consider claims of employment discrimination, the time to file an
employment discrimination claim may be extended to 300 days.
See, e.g., id.; Torrico v. Int'l Bus. Mach. Corp., 319 F. Supp. 2d 390, 403 (S.D.N.Y. 2004);
Valentine v. Standard & Poor's, 50 F. Supp. 2d 262, 281
(S.D.N.Y. 1999), aff'd, 205 F.3d 1327 (2d Cir. 2000).
The statutory time period to file a charge with the EEOC may
also be extended if a plaintiff has suffered a "continuing
violation." This doctrine "extends the limitations period for all
claims of discriminatory acts committed under an ongoing policy
of discrimination even if those acts, standing alone, would have
been barred by the statute of limitations." Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (internal
citation and quotation marks omitted) (emphasis in original). A
series of separate acts may be characterized as a continuing
violation if the separate acts "`collectively constitute one
unlawful employment practice.'" Washington v. County of
Rockland, 373 F.3d 310, 318 (2d Cir. 2004) (quoting Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
Specifically, the continuing violation doctrine may be invoked
where an employee is challenging "specific discriminatory
policies or mechanisms," Lambert v. Genesee Hosp., 10 F.3d 46,
53 (2d Cir. 1993); accord Heins v. Potter,
271 F. Supp. 2d 545, 556 (S.D.N.Y. 2003), or "where there have been specific and
related instances of discrimination, and the employer has
permitted them to continue unremedied for so long that its
inaction may reasonably be viewed as tantamount to a policy or
practice of tolerating such discrimination," Fitzgerald v.
Henderson, 251 F.3d 345, 362 (2d Cir. 2001); accord Heins,
271 F. Supp. 2d at 556. Thus, "`if a plaintiff has experienced a
continuous practice and policy of discrimination, . . . the
commencement of the statute of limitations period may be delayed
until the last discriminatory act in furtherance of it.'"
Washington, 373 F.3d at 317 (quoting Fitzgerald,
251 F.3d at 359) (omission in original). III. DISCUSSION
The Parks Department has moved for partial judgment on the
pleadings on the ground that Idrees failed to file his Title VII
and ADEA claims with the EEOC within 300 days of the occurrence
of many of the discriminatory actions. See Def. Mem. at 3. The
Department argues that any claims brought under these statutes
based on events prior to April 13, 2002 300 days prior to the
date the charges were filed with the EEOC are time-barred.
Id. They also argue that the state tort claims are barred for
failure to comply with state law exhaustion requirements. Id.
A. Promotion Claims
1. Promotions Prior to April 13, 2002
Idrees alleges that the first time he was denied a promotion
was on September 20, 1995 when he was not selected for the
position of Director of Fiscal Management in Queens. See Compl.
at 1; Pl. Reply at 7. Idrees was subsequently denied promotions
on 16 other occasions between 1995 and 2001. See Compl. at 1-2;
Pl. Reply at 7-8. Idrees lists every position that he applied
for, as well as positions that were never advertised. See
Compl. at 1-2; Pl. Reply at 7. Idrees mentions that he was also
denied a promotion to the position of Deputy Director of
Contracts Administration in 2002, but he does not specify the
date on which he was denied the promotion. See Pl. Reply at 8.
Idrees's claims that he was not promoted for discriminatory
reasons prior to April 13, 2002 are untimely as they fall outside
the statutory time period for filing a charge with the EEOC.
Moreover, none of the claims alleging discriminatory failure to
promote can be saved by the operation of the continuing violation
doctrine. The Supreme Court has expressly held that the failure to promote is a discrete discriminatory act that
cannot extend the applicable filing period under the continuing
violation doctrine. See Morgan, 536 U.S. at 114 ("Discrete
acts such as termination, failure to promote, denial of
transfer, or refusal to hire are easy to identify. Each incident
of discrimination and each retaliatory adverse employment
decision constitutes a separate actionable `unlawful employment
practice.'") (emphasis added). "The holding in Morgan is in
accord with Second Circuit law which states that alleged failures
to compensate adequately, transfers, job assignments and
promotions cannot form the basis for a continuing violation
claim." Gross v. Nat. Broad. Co., 232 F. Supp. 2d 58, 68-69
(S.D.N.Y. 2002). Accordingly, untimely failure to promote claims
cannot be brought within the ambit of the continuing violation
doctrine and must be dismissed. See, e.g., Hnot v. Willis
Group Holdings Ltd., 2005 WL 831665, at *3 (S.D.N.Y. Apr. 8,
2005) (plaintiff's "claims of discriminatory failure to promote
and retaliatory termination are considered discrete,
separately-actionable practices that occur on specific
ascertainable dates, and are not continuous violations"); Milani
v. Int'l Bus. Mach. Corp., 322 F. Supp. 2d 434, 452 (S.D.N.Y.
2004) (argument that discrete incidents of discrimination
including failure to promote could constitute a continuing
violation "foreclosed" by Morgan); Perez v. Int'l Bhd. of
Teamsters, AFL-CIO, 2004 WL 1824100, at *8 (S.D.N.Y. Aug. 16,
2004) (untimely failure to promote claims do not "present a basis
for taking refuge in the continuing violation doctrine").
Idrees contends that his claims should nonetheless be deemed
timely because they show a pattern or practice of discrimination
by the Parks Department. See Pl. Reply at 10 ("[T]he conclusion
is that there is a pattern of discrimination, retaliation
including physical abuses. And hence the time factor should not
be considered in my case."). While Morgan makes clear that it does not purport to rule on "pattern-or-practice" claims, see
Morgan, 536 U.S. at 115 n. 9 ("We have no occasion here to
consider the timely filing question with respect to
`pattern-or-practice' claims. . . ."), that doctrine cannot save
Idrees's time-barred claims.
First, it is not even clear that a plaintiff may bring a
pattern-or-practice claim outside of a class action suit. See
Blake v. Bronx Lebanon Hosp. Ctr., 2003 WL 21910867, at *5
(S.D.N.Y. Aug. 11, 2003) ("[T]he court doubts that a plaintiff
can bring a `pattern and practice' claim in a non-class action
complaint.") (citing cases suggesting that pattern-or-practice
claims are not appropriate in non-class actions). Second, the
ruling in Morgan suggests that "courts should not readily allow
plaintiffs to allege pattern or practice claims based on a series
of discriminatory acts." Timothy v. Our Lady of Mercy Med.
Ctr., 2004 WL 503760, at *4 (S.D.N.Y. 2004). One court has
concluded that Morgan made clear "that there is no indication
that the term `practice' as used in Title VII `converts related
discrete acts into a single unlawful practice for the purposes of
timely filing.'" Gross, 232 F. Supp. 2d at 68 (quoting
Morgan, 536 U.S. at 111).
"To succeed on a pattern-or-practice claim, plaintiffs must
prove more than sporadic acts of discrimination; rather, they
must establish that intentional discrimination was the
defendant's `standard operating procedure.'" Robinson v.
Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001)
(quoting Int'l Bhd. of Teamsters v. United States,
431 U.S. 324, 336 (1977)); accord Milani, 322 F. Supp. 2d at 452-53.
Accordingly, generalized allegations that discrete discriminatory
acts constitute a pattern or practice of unlawful discrimination
are insufficient. See Blake, 2003 WL 21910867, at *5 ("[A]
plaintiff does not properly allege an ongoing discriminatory
policy simply by invoking the magic words `pattern' or
`practice.'"); accord Gross, 232 F. Supp. 2d at 68;
Timothy, 2004 WL 503760, at *3. Rather, a plaintiff must
identify a policy or practice that underlies the discrete acts of
discrimination. See Milani, 322 F. Supp. 2d at 453 (discrete
acts of failure to promote, failure to be compensated adequately,
and denials of preferred job assignments could not be found to
constitute a pattern or practice of discrimination absent any
evidence of an underlying discriminatory policy or practice). In
Timothy, 2004 WL 503760, at *3-*4, the court found that the
plaintiff's allegation that her demotion and unfavorable work
assignments were "based upon systematic discrimination against
minority employees and child-rearing women" was insufficient to
state a pattern-or-practice claim and thus each discrete
discriminatory act was time-barred. Similarly, in Blake, 2003
WL 21910867, at *5, the court was "not convinced that plaintiff
has truly pleaded a `pattern and practice' claim which might
still form the basis of a continuing violation after Morgan,"
even where the plaintiff argued that he was receiving disparate
pay as a result of a discriminatory status assignment regime.
In the present case, Idrees has made only conclusory
allegations that his treatment was the result of a systematic
discriminatory policy. Merely stating that "DPR is known to
discriminate" and citing to pending discrimination lawsuits
against the Parks Department, Pl. Reply at 9, does not
sufficiently allege a pattern-or-practice claim. Accordingly, his
claims cannot be deemed timely under a pattern-or-practice
Finally, we note that the deadline for filing an EEOC charge is
subject to the doctrines of equitable tolling and equitable
estoppel. See Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393 (1982). To excuse an otherwise untimely charge under
these doctrines, a plaintiff must either be unaware of his claim
and/or show that some "conduct" by the defendant "caused him to
delay bringing his [claim]." Dillman v. Combustion Eng'g, Inc.,
784 F.2d 57, 60-61 (2d Cir. 1986) (citation and quotation marks
omitted). Neither circumstance has been alleged here and there are no grounds for finding that either equitable tolling or
equitable estoppel applies.
2. Promotions After April 13, 2002
Idrees avers that he has been rejected from additional
promotional opportunities since filing his complaint with the
EEOC on February 7, 2003. See Pl. Reply at 9-10. As noted,
Title VII and ADEA claims must be brought before the EEOC as a
precondition to bringing them in federal court. See
42 U.S.C. § 2000e-5(e). An exception exists, however, if the claims filed for
the first time in federal court "are `reasonably related' to
those that were filed with the agency." Shah v. New York State
Dep't of Civ. Serv., 168 F.3d 610, 614 (2d Cir. 1999). Courts
have recognized that claims alleging retaliation against an
employee for filing a discrimination claim will be considered
reasonably related, as well as allegations of "`further incidents
of discrimination carried out in precisely the same manner
alleged in the EEOC charge,'" Alfano v. Costello, 294 F.3d 365,
381 (2d Cir. 2002) (quoting Butts v. City of N.Y. Dep't of Hous.
Pres. and Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993)).
In the present case, Idrees's complaint includes claims that he
was denied promotions after he filed his complaint with the EEOC,
and that the jobs he sought were given to younger, non-Muslim
employees. See Compl. at 6, Pl. Reply at 9-10. Idrees also
appears to suggest that he was denied these opportunities, in
part, in retaliation for filing a complaint with the EEOC. See
Pl. Reply at 10. At this stage of the litigation, these
allegations are sufficient to conclude that Idrees's unexhausted
claims of failure to promote are reasonably related to the filing
of the original EEOC complaint and should be allowed to stand.
See Legnani, 274 F.3d at 686-87; Nakis v. Potter, 2004 WL
2903718, at *13 (S.D.N.Y. Dec. 15, 2004). In any event, the
defendant does not seek dismissal of these claims. B. State Tort Claim
Idrees also claims that the Parks Department failed to protect
him from being "physical[lly] abuse[d]." Compl. at 7; accord
Pl. Reply at 10. This claim relates to Preda's attack on Idrees.
Defendants argue that this claim must be dismissed because it is
time-barred and because Idrees failed to file a notice of claim
as required by state law. Def. Mem. at 4-5.
New York General Municipal Law § 50-i requires that tort claims
against a municipal corporation must be commenced a year and 90
days after the event on which the claim is based. The law also
requires an individual to serve a notice of claim before filing
an action for damages. N.Y. Gen. Mun. L. §§ 50-e and 50-i. There
is no dispute that Idrees failed to serve a notice of claim.
See Pl. Reply at 13. He argues instead that he did not file
because he feared being terminated. Id.
State notice-of-claim requirements apply to state law claims
when the state law claims are brought in federal court. See
Felder v. Casey, 487 U.S. 131, 151 (1988); Hardy v. New York
City Health and Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999).
"The purpose of the notice of claim requirement is to afford the
municipality an adequate opportunity to investigate the claim in
a timely and efficient manner and, where appropriate, to settle
claims without the expense and risks of litigation." Fincher v.
County of Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997)
(citing Brown v. New York City Transit Auth., 172 A.D.2d 178,
1780 (1st Dep't 1991)). Because Idrees's failure to protect claim
falls under state law and "[t]he notice of claim requirements
apply equally to state tort claims brought as pendent claims in a
federal civil rights action" as to state law claims brought in
state court. Id. (citing Russell Pipe & Foundry Co. v. City of
New York, 1997 WL 80601, at *15 (S.D.N.Y. Feb. 25, 1997);
McNeil v. Aguilos, 831 F. Supp. 1079, 1085 (S.D.N.Y. 1993)). As Idrees's fear of
termination cannot excuse compliance with these statutory
requirements, this claim is barred under New York law.
For the foregoing reasons, the Department's motion for partial
judgment on the pleadings should be granted with respect to
Idrees's claims based on events that occurred before April 13,
2002, and with respect to his tort claim under state law.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of this Report and Recommendation to serve and file any
objections. See also Fed.R.Civ.P. 6(a), (e). Such
objections (and any responses to objections) shall be filed with
the Clerk of the Court, with copies sent to the Hon. Lewis A.
Kaplan, 500 Pearl Street, New York, New York 10007, and to the
undersigned at 40 Centre Street, New York, New York 10007. Any
request for an extension of time to file objections must be
directed to Judge Kaplan. If a party fails to file timely
objections, that party will not be permitted to raise any
objections to this Report and Recommendation on appeal. See
Thomas v. Arn, 474 U.S. 140